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Commonwealth v. Wise3/22/2004
hat this court has held in Commonwealth v. Fogel, 741 A.2d 767, 769 (Pa.Super. 1999), that the trial court may only review the prior seven years in determining the appropriate classification of the DUI offense. Id. This court has also held that, " hen a sentencing court makes the decision to deviate from the sentencing guidelines, 'it is especially important that the court consider all factors relevant to the determination of a proper sentence.'" Commonwealth v. Eby, 784 A.2d 204, 207 (Pa.Super. 2001), citing Commonwealth v. Ruffo, 520 A.2d 43, 47 (Pa.Super. 1987).
8 The sentencing court in this case, however, focused only upon a conviction that is not contemplated by the sentencing guidelines. The sentencing court's sole reason for sentencing appellant in the aggravated range consists of his 1989 DUI conviction. In its opinion, the trial court ostensibly does not question the authority of the General Assembly, and notes: "a sentencing court should certainly have the discretion to consider a prior conviction when distinguishing between a driver who has been convicted for a first time violation of Section 3731 and those who have had prior incidents of conviction under 3731." (Trial court opinion, 2/28/03 at 2.) This court, however, has stated the following:
It is not the role of the judicial branch to fault the wisdom of the legislative branch, our partner in the government of the Commonwealth. The guidelines have been adopted by our General Assembly (See: 204 Pa.Code Ch. 303) to serve the important purpose of promoting uniformity in sentencing across the many counties of this Commonwealth. Thus, the sentencing court is obliged to observe the provisions of the statute in molding the sentence to be imposed. As our eminent colleague, Judge John G. Brosky, has recounted:
The primary purpose behind the establishment of sentencing guidelines was to create a system where not only would offenders be properly punished for their transgressions, but also where like offenders would be treated consistently. See, Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984).
Eby, 784 A.2d at 208.
9 This court has the option of amending appellant's sentence directly or remanding it to the trial court for resentencing if we determine the sentence must be corrected.
10 Judgment of sentence vacated and case remanded for resentencing consistent with this Opinion. Jurisdiction relinquished.
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